# FILED May 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1999

JULIUS GOODMA N, ) C.C.A. NO. 03C01-9807- CR-00252 ) Appe llant, ) ) JOHNSON COUNTY V. ) ) HOWARD CARLTON,WARDEN, ) HON. LY NN W. BROWN,JUDGE and STATE OF TENNESSE E, ) ) Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT : FOR THE APPELLEE : JULIU S GO ODM AN, pro se JOHN KNOX WALKUP Northeast Corr

ection Complex #91453 Attorney General& Reporter P.O. Box 5000 Mountain City , TN 37683 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOE C. CR UM LEY, J R. Distri ct Attorney General 114 Alf Taylor

Road Johnson City, TN 37601

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

JuliusGoodman, the Petit ioner, appeal s the dismiss al of hi s petiti on for habeas corpus reli ef. In 1985 , the Petiti oner pled guil ty to aggr avated rape and was sentenced to forty ( 40) years im prisonm ent in the H aywoo d Cou nty Circuit C ourt. On February 13, 1998, Petit ioner fi led a peti tion forhabeas corpus rel ief, ass erting thatthe indi ctment for aggr avated rape was i nvalid asit di d not contain th e requisite mensrea . The tri al court di smissed the petition based upon t he issue not bei ng ame nable to habeas corpus relief. On March 25, 1998, t he Petiti oner fil ed a motion to recon sider th e dism issal an d to am end h is petiti on for habeascorpus reli ef. In t he amen dmen t, Petiti oner stated t hat the Distri ct Attorney fail ed to sign t he indict ment sent to the grand j ury and such fai lure render ed the ind i ctment against him void. This motion was also denied by the trialcourt, and Pet itioner appeals on the ba sis of this den ial. We affirm the ju dgme nt of the trial co urt.

It is a well -establi shed princi ple of l aw that the r emed y of habe as co rpus is limite d in its nature a nd sco pe. Archer v. State , 851 S.W .2d 157, 161 -62 (T enn . 1993); Passarella v. State , 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In Tennessee, habe as co rpus re lief is ava ilable o nly if “ ‘it appears upon the face of the judgment or the recor

d of the proceedi ngs upon which the j udgment is rendered’that a convic ting court was wi thout jurisdict ion or authority to sentence a defendant , or thata defendant’s sentence of imprisonm ent or other restraint ha s expired.” Archer , 851 S.W .2d at 1 64. Th e petitio ner ha s the b urden of esta bli shing eit he r a void judgment or an illegal confinem ent by a preponderance of the evide nce. Pass arella , 891 S.W.2d at 627 (citation om itted). Moreover, wher e a judgment is not

void, but is merely voi dable, such j udgment may not be coll aterally attacked i n a suit for-3-

habeas corpus relief. Id . Withou t a valid indictment, there can be no juri sdicti on and no pros ecution. Dykes v. Compton , 978 S.W .2d 528 (Te nn. 1998). “[T]he valid ity of an indict ment and the eff icacy of t he resulti ng convicti on may be addressed in a petiti on for habeas corpus when the indict ment is so defective as to d eprive the court of jurisdic tion.” Id . at 529. Therefore, this case is properly befor e our court i n a habeas corpus proceedi ng.

Petiti onerfirst argu es tha t his con viction is void becau se the ap propriate mens reafor the offense of aggravated rape was not incl uded i n the language of the indict men t. A t the ti me of the offense in April1985, Tennessee Code Annotated section 39-2-603 defi ned aggravat ed rape as “unlawful sexual penetrati on of another accompanied by . . . force or c oe rcion . . . used to accompl ish the act and the defendant is

armed with a weapon or any article used o r fashione d in a ma nner to lead the victim re asona bly to belie ve it to be a weapon.” This language was sufficient un der the law as it existed a t that time.

This indict ment was issued pri or to t h e Criminal Sentencing Reform Act of 1989, and th e Crim inal Code did not contain a provisi on similar to § 39-11-301(c) (1989). The only statuto ry requiremen ts for an indictmen t were found in § 40-1802 (now § 40-13-202 (1990)), which provi ded as follows: The indict ment mus t state th e facts cons tituting th e offen se in ordinary and concise languag e, without prolix ity or

repetiti on, in such a manner as to enable a per

son o f common unde rstand ing to k now w hat is intended, and with that degree ofcertainty wh ich will enab le the cou rt, on con viction, to pro nounc e the pro per judg ment. How ever, g enera lly stated an ind ictme nt is valid if it provides suf ficien t information (1) to enable t he accused to know t he accusation to which an answer is req uired, (2) to furnish the court adequate basis f o r the entry o f a prope r judgm ent, and (3) to-4-

protectthe accus ed from dou ble jeopardy.” State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). While Hill was prosecuted under the Criminal Sentencing Reform Act of 1989, its a nalysis is as relevant to crimes committedunde r the 19 79 Ac t as it is to those co mm itted unde r the 198 9 Act. Dykes v. Compton , 978 S.W.2d at 530. Just as in Hill , the mental state i n the case su b jud ice is easily infer able from the condu ct alleged in the indictm ent. Id
.
As t he indict ment against Pet itioner contained t he words found i n the la nguage of the statute t hat he had “unlawful sexual penetr ation” of the v ict i m contrary to Tennessee Code Annotated Secti on 39-2-603, t he indict ment meets the requirem ents of suffi cientl y apprisi ng the Petit ioner of the offens e charged under th e law at the tim e. Petitione r’s issue is w ithout me rit.

Petition er’s second argument addresses t he alleged failure of the prosecutor or distri ct attorney to sign the indi ctment. Petitioner i s cor rect that the Distri ct Attorney is requi red to sign the indi ctment some where o n the indic tment. See Steve Carro ll v. Howa rd Carlton , Warden , No. 03C01-9611-CR-00420, sl ip op. at 2, Johnson Coun ty (Ten n. Crim . App., a t Knoxvil le, January 21, 1998) (No Rule 11 applicat ion filed)(citat ions omitted). However, our revi ew of the in dictment i ndicates thatit was, in fact, signed by the Distri ct Attorney Ge neral at the bottom of the third page of a three- page indict ment. The six ( 6) count s within the indictme nt were cons ecutive ly numb ered, with counts (1), (2) and (3) on the fi rst page, counts (4) and (5) on the se cond p age, co ncluding with count (6) on the third page . It is reas onab le to interp ret his signat ure as inte nding to cover all si x (6) counts contained i n the three-pa ge indictm ent. Id ., slip op. at 2. T his issue is also witho ut merit.-5- After findingPetiti oner’s issues to be without merit, we aff irm the judg ment of the trial cou rt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ L. T. LAFFERTY, Senior Judge